High time to legalise prostitution

For the last sixty years, sex workers have lived under an ambiguous law that neither prohibits nor permits sex work.

Enacted in 1956, the Suppression of Immoral Traffic Act (SITA) – as the law was called then, was preceded by discussion on the socio-economic condition of sex workers and obligations under the Convention for the Suppression of Traffic in Persons and of the Exploitation of Prostitution of Others, 1949, which India had signed.

Ultimately, Parliament accepted that the law could take care of the public manifestation of sex work but not the private act of consensual sex for consideration. Under SITA, prostitution was defined as “the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind”. This conduct was not made punishable. And when sex workers were sought to be prosecuted, courts clarified that “the purpose of SITA is to inhibit prostitution as an organised means of living. The idea is not to render prostitution per se a criminal offence, or to punish a woman merely because she prostitutes herself.”

What the law did criminalise was soliciting, engaging in sex work in public places, keeping or managing a brothel, pimping and procuring. The net effect was that sex workers were left with no place or means to carry on their trade, except their own homes. That too, attracted censure as the Magistrate could order a sex worker to remove herself from any place and forbid re-entry.

The law became more vague after the 1986 amendment, when it was renamed Immoral Traffic (Prevention) Act, 1956 (ITPA). The statute was made gender-neutral and stringent penalties were added for child prostitution. But the most defining change was in the understanding of sex work.

Under ITPA, prostitution was redefined as “sexual exploitation or abuse of persons for commercial purposes and the word prostitute shall be construed accordingly.” Significantly, not only were the elements of ‘exploitation and abuse’ emphasised, but words that made prostitution synonymous with consensual sex for consideration were deleted altogether. 

Ordinarily, ‘exploitation or abuse’ refers to situations where someone is taking unfair advantage of another. The question in the context of sex work is – who is exploiting whom? Is the sex worker exploiting himself/ herself by offering sexual services?
Or is the person who pays or offers to pay for sexual services exploiting the sex worker? And can the advantage – material gain for the sex worker and pleasure for the buyer, be considered unfair? And would this transaction partake the nature of ‘sexual exploitation for a commercial purpose’ within the ambit of ITPA?

Indiscriminate use of ITPA
Consensual sex cannot be termed sexual exploitation. But ITPA is applied indiscriminately. Brothels are raided, as are parlours, spas and other similarly situated establishments, on the suspicion that the place is being used to carry on prostitution. Police enter premises and remove women; some are arrested as ‘madams’, while others are labeled ‘victims’ and detained in ‘protective’ homes.

Never mind their age or willingness. Actions that violate the liberty, privacy and autonomy of adults go unquestioned owing to the ambiguity in ITPA. At the same time, cases involving coercion go unpunished, because ambiguity creates loopholes, which is an ideal ground for acquittal. This is where the law requires change. Calls for sex work law reform are not attempts to legitimise exploitation. Certain anti-trafficking groups claim that if ITPA is amended or abolished, trafficking will proliferate. Of course, the same groups also claim that trafficking in women and girls has increased multifold, notwithstanding the ITPA.

With the Criminal Law Amendment of 2013, the Indian Penal Code is armed with stiff provisions against trafficking. Section 370 punishes trafficking in persons for all purposes including sexual exploitation. The ITPA, which exclusively targets sex work and punishes acts that have no connection with trafficking, is redundant.

The International Labor Organisation estimates that worldwide, there are 14.2 million victims of forced labour compared with 4.5 million victims of sexual exploitation. Yet, anti-trafficking crusaders, including governments selectively focus on sex work, ignoring trafficking in other sectors. This has only weakened the response to trafficking.

A good start to legislating sex work would be to remove specific legislation like ITPA and applying laws for everyone else, be it crime, contract, labour, health security or trafficking.

(The writer is an Advocate and Deputy Director with the Lawyers Collective, New Delhi)